Tort Vision for the New Millenium: Strengthening News Industry Standards as a Defense Tool in Lawsuits Over Newsgathering Techniques

“A Generation of Vipers,” proclaimed the cover story in The Columbia Journalism Review, as the nation’s most esteemed voice of media criticism evaluated the journalistic landscape of the mid- 1990s. The healthy skepticism that prompts journalism professors to instruct: “if your mother says she loves you, get a second source,” has been replaced by wholesale cynicism, suggests this critique. “It’s worth noting that, in several dozen interviews, no journalist reported becoming less cynical over a lifetime of reporting.” If cynicism has infected contemporary journalists, then it ap- pears the public has responded with cynicism of its own— apparently viewing the news media, as an institution, with a more jaundiced eye. Survey data from a leading media research think tank, The Pew Center for the People & The Press, in 1997, found the American public “more critical of press practices, less enthusiastic about the news product and less appreciative of the watchdog role played by the news media than it was a dozen years ago.” Empirically, The Pew Center survey found that in 1985, a solid majority polled believes news organizations were accurate. A dozen years later, a similar majority believed they did not “get the facts straight.” An even more solid majority believed the news media unnecessarily invaded people’s lives – even when it was not in the public interest to do so. The Supreme Court’s majority has paid homage to “the press as a watchdog of government activity,” insofar as “the basic assumption of our political system that the press will often serve as an important restraint on government” and a “check on government abuse.”8 But three decades since that judicial tribute, these survey data indicate that the public now sees the news media less as watchdog and, perhaps, more as attack dog. As the news media, institutionally, has no clearly enumerated constitutional role beyond the generally stated principle that “Congress shall make no law . . . abridging the freedom of speech, or of the press,” journalists must depend on a combination of judicial interpretation, statutory immunities, and jury decisions to maintain their ability to gather editorial material as freely as possible. While the law of defamation is generally settled by New York Times v. Sullivan and its progeny, the United States Supreme Court has never extended First Amendment press freedoms and protection to the gathering of editorial information. In fact, Cohen v. Cowles Media Co., suggests that the First Amendment does not protect the right to gather news. Newsgathering is governed by the same statutory and tort law principles that apply to the public generally – as long as these applications do no more than incidentally interfere with the ability to disseminate editorial material. The Supreme Court has not precisely defined “incidental” – leaving the definition to evolve through the common law. Given the difficulties of pursuing defamation cases as a result of New York Times v. Sullivan and its progeny, plaintiffs alleging media mistreatment are increasingly bypassing slander and libel causes of action and, instead, entering Cohen’s open door to pursue newsgathering claims. The outcomes in these cases demonstrate that “incidental” is in the eye of the beholder: the increasingly jaundiced eye of public opinion. In Food Lion, Inc. v. Capital Cities/ABC, Inc., a North Carolina jury awarded just $1,402 dollars in actual damages but $5.5 million in punitive damages for ABC News’s use of hidden cameras to expose a supermarket chain’s unsanitary practices. Although the damage award was later reduced to just two dollars on appeal, the case remains illustrative: the truth of ABC’s report was not at issue, only the means used to gather information. In Food Lion, the entire jury award hinged on misrepresentations made by an ABC News journalist when applying for a supermarket job needed for the undercover access necessary to visually document Food Lion’s sanitary practices. Similar stealth led a jury in Maine to hold NBC News liable for $525,000 in damages after it falsely promised a trucker and his employer that, if given access during a transcontinental journey, the network would air a piece with a positive spin. After the trucker violated federal safety regulations, NBC aired the video documentation. Although the information was wholly true, the jury focused on the initial breach of promise to hold NBC liable. Even when news organizations successfully defeat law suits attacking newsgathering practices as violations of laws of general applicability, judges sometimes chide plaintiffs’ attorneys for failing to raise all possible claims such as fraud or trespass or breach of contract, that might have succeeded. With judicial interpretation more likely to assign newsgathering to an analytic box at the edges of First Amendment protection, juries can be expected to continue expressing the general public’s well-documented, growing distrust of American journalism. As a post-trial interview with a Food Lion juror, 64-year-old Marie Bozeman, illustrates: She is particularly concerned about the invasiveness of the hidden camera and its potential for exaggerating or misrepresenting events. She painted a scenario in which an employee unburdens himself about his employer to a fellow “employee” who is secretly videotaping. “The next day they may feel different about their company, but it’s on TV! Nobody should be made to share their innermost thoughts unless they want to. Because of such tactics, says Bozeman, “I don’t trust them to do an honest job – not all the way.” ‘People don’t see journalism as public service anymore,’ said former Washington Post ombudsman Joann Byrd. ‘They believe . . . journalists are engaged in self-service and either getting ratings, selling newspapers or making their own careers. That leads people to believe that our ideas about ‘detachment’ or ‘public service’ are so much hogwash.’ The development of large-scale public mistrust toward the institution of journalism, once viewed as a kind of “fourth estate” or proxy for the people, demonstrates that the news media and its attorneys face new challenges. Juries, drawn from a public grown more hostile, threaten enormous awards even when the transgression or tort may be minimal -- in Food Lion. The plaintiffs’ bar has increasingly taken notice of this trend as “challenges to news- gathering techniques become new arena for attacks on investigative work.” Investigative reporting, even by such well-endowed news organization as ABC News, could be chilled by a series of multi-million dollar Food Lion-like jury awards. Indeed, in 1995, CBS News refrained from broadcasting an interview with a tobacco industry whistle-blower, fearing that it would run afoul – and face liability – for a violation of the whistle blower’s employment-related non-disclosure agreement. The news industry has a business problem in need of attention on several levels. Clearly, American journalism must re-establish institutional credibility. However, changes in attitude often require long time frames – while ongoing newsgathering efforts can result in lawsuits at any moment. Thus, while the industry grapples with its longer-term public image problems, it should act decisively in developing an immediate legal strategy to defeat the increasingly frequent number of lawsuits arising from newsgathering activities. This essay proposes that the news industry should develop a tort-law strategy centered on establishing measurable industry newsgathering standards. Much as adherence to industry standards can demonstrate reasonable care in more typical personal injury or property damages tort cases, so too can an industry-wide effort at standard-setting serve, in the shadow of Cohen, to support the core value of press freedom: that the people shall know. In many instances, the only way the people may know is if the news media has adequate latitude to gather information without the chilling effects of liability hovering like an Alberta Clipper in February.

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